Citation Nr: 1512531
Decision Date: 03/24/15 Archive Date: 04/01/15
DOCKET NO. 10-10 553 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Entitlement to recognition of R.J., as a helpless child of the Veteran, on the basis of permanent incapacity for self-support prior to attaining the age of 18 years.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Sopko, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1961 to August 1964. His son, R. J., is the subject of the appeal for recognition as a helpless child.
This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran, who is 100 percent disabled, is seeking additional dependent benefits for his adult son, R.J., on the basis that he is a helpless child permanently incapable of self-support.
R.J. was born in December 1979. The Social Security Administration (SSA) awarded R.J. disability benefits in September 1995, i.e., at age 15.
VA regulations provide that, for the child of a veteran to be shown to have permanent incapacity for self-support, the child must be shown to have been permanently incapable of self-support by reason of mental or physical defect by or at the date of attaining the age of 18 years. 38 C.F.R. § 3.356 (2014). Physical or mental defects must make the child permanently incapable of self-support through his own efforts. Id. Employment that is only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support that is otherwise established. Id. The capacity of a child for self-support is not determinable upon employment that is afforded solely upon sympathetic or charitable considerations and that involves no actual or substantial rendition of services. Id.
The Board requested SSA's Supplemental Security Income decision and underlying medical records in September 2013. SSA notified VA in February 2014 that these records are not available. In March 2014, VA notified the Veteran of SSA's response.
Given the lack of SSA records, the Board finds it is cannot determine whether R.J.'s disability renders him permanently incapable of self-support. Therefore, remand is warranted to obtain a medical examination.
Accordingly, the case is REMANDED for the following action:
1. Instruct the Veteran to document all employment R.J., the Veteran's son, has had since December 1997. Identify the names of his employers, the duration of each employment period, and the nature of each position held.
2. Schedule R.J. for a VA examination to address the question of permanent incapacity for self-support. Access to the claims file must be made available to the examiner. Any indicated diagnostic tests and studies must be accomplished.
The examiner is advised:
(a) SSA awarded R.J. disability benefits in September 1995. However, it is unclear why because SSA's decision and underlying medical records are unavailable.
(b) R.J. may be found to be permanently incapable of self-support prior to the age of 18 years, even if there was a short intervening period(s) when his condition was such that he was employed, provided that the cause of the incapacity is the same as that shown prior to his 18th birthday, and there were no intervening diseases or injuries that could be considered major factors.
(c) The examiner should also keep in mind that employment that is only casual, intermittent, a tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapacity for self-support otherwise established.
After examining R.J. and reviewing the claims file, the examiner should:
(a) Ascertain, if possible, why SSA determined R.J. was disabled as of September 1995.
(b) Ascertain if R.J. remains on SSA disability. If he does not, ascertain, if possible, when his SSA disability was discontinued.
The examiner should opine on the following:
(a) As of the examination date, is R.J. permanently incapable of self-support? If yes, why? If no, why not?
(b) If the answer to (a) is yes, state whether this incapacity was present at age 18, i.e., by December 1997, and explain why.
3. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA, as appropriate. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once.
4. Upon completion of the above requested development and any additional development deemed appropriate, readjudicate the issue on appeal. All applicable laws, regulations, and theories of entitlement should also be considered, as well as any evidence received since the November 2014 supplemental statement of the case. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Kelli A. Kordich
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).